US v. Dent

Filing

Case: 16-2005
Document: 00117186675
Page: 1
Date Filed: 08/08/2017
Entry ID: 6111370
United States Court of Appeals
For the First Circuit
No. 16-2005
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTIAN DENT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta and Barron, Circuit Judges.
Jeffrey W. Langholtz on brief for appellant.
Julia M. Lipez, Assistant United States Attorney, and Richard
W. Murphy, Acting United States Attorney, on brief for appellee.
August 8, 2017
Case: 16-2005
Document: 00117186675
KAYATTA,
Circuit
Page: 2
Judge.
Date Filed: 08/08/2017
Defendant
Entry ID: 6111370
Christian
Dent
appeals the district court's denial of his motion to suppress
evidence that was seized from his apartment pursuant to a warrant.
While two law enforcement agents were seeking the warrant, other
agents entered the apartment, detained the individuals who were
present, and, in the ostensible course of securing the premises,
came upon some of the evidence that was later seized.
contends
that
the
officers
exploited
their
presence
Dent
in
the
apartment in so egregious a manner as to foreclose the application
of any relevant exceptions to the Fourth Amendment's exclusionary
rule.
Because it is undisputed that the warrant was not based on
information gleaned from the warrantless seizure and sweep of
Dent's apartment, and because the officers' conduct did not rise
to a level that might arguably justify a departure from the normal
rules
governing
suppression,
we
affirm
the
district
court's
ruling.
I.
On November 11, 2014, law enforcement agents monitoring
a court-authorized wiretap determined that a cell phone associated
with an individual named Troy Jones appeared to be moving from New
York to Maine.
Eventually, the phone was traced to the Lewiston-
Auburn area of Maine.
On November 12, the wiretap intercepted a
call from Jones--using a different phone than the one that the
agents had been tracking--to Dent.
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During that call, Dent stated
Case: 16-2005
Document: 00117186675
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Entry ID: 6111370
that "he fixed it, he tied that shit up, gave it to [Jones's
girlfriend, later identified as Dominique Jackson,] and told her
to put it up."
Dent further noted that Jackson was "still in the
crib."
Federal Bureau of Investigation Special Agent Patrick
Clancy,
who
had
been
overseeing
the
wiretap
operation
and
monitoring the wiretap on the days in question, testified at the
suppression hearing that he understood the conversation to mean
that Jackson was in an apartment associated with Dent and that she
possessed individually bagged allotments of crack cocaine, which
Dent had prepared from powder cocaine.
Clancy also testified that
he believed that Dent was not in the apartment at the time of the
intercepted call.
Based on his understanding of the situation, Clancy
decided not only to apply for a warrant to search the apartment,
but also "[t]o secure the residence in advance of obtaining a
search warrant."
Clancy testified that his decision was informed
by concern that the ready-to-sell drugs would be moved, as well as
concern about the safety of officers if they first arrived to
execute the warrant after Dent returned.
Clancy further testified
that he considered but decided against establishing a perimeter
around the apartment building, as Dent had previously been able to
recognize and "identif[y] some of the surveill[ing] [officers] on
the street by name"; Clancy stated that he "was concerned that an
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Document: 00117186675
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Entry ID: 6111370
occupant inside or somebody passing by [the residence] might see
law enforcement in the area, [and] alert Mr. Dent or others to the
presence of law enforcement," which might thereby lead to the
disposal or relocation of the drugs that they suspected to be in
the apartment.
Clancy also acknowledged that he was "looking for
a conclusion to the investigation" of Dent, i.e., that he was
"hoping to catch somebody with a load of drugs," and that the
authorization for the relevant wiretap was about to expire.
While
warrant
Clancy
application,
and
another
three
police
agent
prepared
officers
went
the
search
to
Dent's
apartment for the stated purpose of "preserv[ing] any evidence in
anticipation of th[e] search warrant."
One officer stationed
himself outside of the apartment building, while the other two
officers entered the building and knocked on the door of the
apartment in question.
The officers were wearing clothing and
gear that indicated that they were law enforcement agents, but
they did not identify themselves as such when they knocked on the
door. When Jackson opened the door and saw the officers, she tried
to slam the door shut, but the officers pushed their way into the
residence,
forced
Jackson
to
the
ground,
and
placed
her
in
handcuffs.
While they were subduing Jackson, the officers heard
music that had been playing elsewhere in the apartment decrease in
volume, which led them to believe that another individual was
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Case: 16-2005
Document: 00117186675
present.
Page: 5
Date Filed: 08/08/2017
Entry ID: 6111370
With guns drawn, the officers began to "clear every room
in the apartment." When they reached the final room to be cleared,
they opened the closed door and observed an individual--later
identified as Jonathan Banyan--attempting to stuff something under
an air mattress.
After placing Banyan in handcuffs, the officers
"searched the vicinity of where he had his hand underneath the air
mattress and saw a baggie of what [they] believed at the time was
drugs," which they "left" undisturbed.
According to one of the
officers, they looked under the air mattress "[t]o make sure the
room was safe," but did not "search for any other contraband during
the security sweep" because they did not have a warrant.
After
the
officers
finished
their
sweep
of
the
apartment, they detained Jackson and Banyan in separate rooms and
waited for the warrant to be issued. During this time, the officer
who had been stationed outside of the building joined the other
officers inside, as did at least one additional officer who had
not been on site for the initial entry.
Upon issuance and
execution of the search warrant several hours after the initial
entry,
officers
apartment.
seized
various
pieces
of
evidence
from
the
In addition to "126.1 grams of cocaine base . . . found
in a package inside of a black bag," officers discovered an
unloaded revolver in the kitchen ceiling, small quantities of
cocaine
base
scattered
throughout
the
master
bedroom,
approximately 80.3 grams of cocaine base in the bathroom ceiling,
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Case: 16-2005
Document: 00117186675
Page: 6
Date Filed: 08/08/2017
Entry ID: 6111370
approximately eight grams of heroin inside a cigarette box, and a
digital scale with drug residue in a kitchen closet.
After
the
district
court
denied
Dent's
motion
to
suppress the evidence that had been seized from the apartment,
Dent pled guilty to one count of conspiracy to possess with intent
to distribute cocaine and twenty-eight grams or more of cocaine
base in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Dent was
subsequently sentenced to 114 months of imprisonment and five years
of
supervised
release.
However,
Dent's
guilty
plea
was
conditional, preserving his right to pursue this appeal of the
district court's refusal to suppress the evidence seized pursuant
to the warrant.
II.
In reviewing a district court's disposition of a motion
to suppress, we examine the court's factual findings for clear
error, while we consider any legal conclusions, including the
court's application of law to facts, de novo.
United States v.
Fermin, 771 F.3d 71, 76–77 (1st Cir. 2014). "To succeed on appeal,
[the defendant] must show that no reasonable view of the evidence
supports
the
district
court's
decision."
United
States
v.
Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008).
The Fourth Amendment requires suppression not only of
evidence seized during an unlawful search, but also of evidence
"that is the product of the primary evidence, or that is otherwise
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acquired as an indirect result of the unlawful search."
United States, 487 U.S. 533, 536–37 (1988).
"independent
source"
exception
to
the
Entry ID: 6111370
Murray v.
However, under the
Fourth
Amendment's
exclusionary rule, "evidence acquired by an untainted search which
is identical to . . . evidence unlawfully acquired" is admissible.
Id. at 538 (emphasis omitted). Accordingly, "[w]hether the initial
entry [into a home] was illegal or not is irrelevant to the
admissibility of the challenged evidence" where "there was an
independent source for the warrant under which that evidence was
seized."
Segura v. United States, 468 U.S. 796, 813–14 (1984)
(plurality opinion); see also Murray, 487 U.S. at 541–42.
The
district
court
denied
Dent's
motion
on
independent-source grounds, concluding that there was no evidence
that either the warrant or the decision to seek the warrant was
tainted by what the officers saw during the initial entry.
The
court found that "the process [of applying for a warrant] had
already been initiated based upon the wiretap and the preceding
information" and "the drugs observed under the air mattress were
not . . . included in the affidavit [supporting the warrant
application], nor was anything else that was seen or observed in
the apartment during that initial protective sweep."
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Case: 16-2005
Document: 00117186675
Page: 8
Date Filed: 08/08/2017
Entry ID: 6111370
Dent's appeal does not dispute these findings, nor does
it contest the validity of the later-issued warrant.1
Instead,
Dent pursues two quite different approaches.
Dent's
primary
argument
is
that
the
officers'
warrantless entry, and actions subsequent to that entry, were so
egregious as to foreclose application of the independent-source
exception.
In support of his position, Dent points to United
States v. Madrid, 152 F.3d 1034 (8th Cir. 1998), in which the
Eighth Circuit vacated the denial of a motion to suppress on the
ground that the inevitable-discovery exception did not apply, id.
at 1041.2
That case involved officers who entered a house without
a warrant and, in the course of performing a "'security sweep,'"
id.
at
1036,
"went
upstairs
and
downstairs
on
two
or
three
occasions, detained and searched the occupants, seized wallets and
placed them in envelopes marked 'evidence,' and leafed through
personal mail and a notebook,"
id. at 1040.
Information gleaned
from this warrantless entry and sweep was then included in the
1
Citing Segura's admonition regarding the "irrelevan[ce]" of
the legality of the officers' entry, seizure, and sweep in deciding
the independent-source question, see 468 U.S. at 813–14, the
district court made no finding in that regard for the purposes of
the independent-source inquiry. Therefore, "we proceed under the
assumption that the officers' [actions] . . . w[ere] improper."
See United States v. Rose, 802 F.3d 114, 123 (1st Cir. 2015).
2
The inevitable-discovery exception is a "close relative" of
the independent-source exception.
See, e.g., United States v.
Siciliano, 578 F.3d 61, 68 n.4 (1st Cir. 2009) (citing Murray, 487
U.S. at 539).
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Case: 16-2005
Document: 00117186675
Page: 9
Date Filed: 08/08/2017
Entry ID: 6111370
affidavit used to secure a warrant, pursuant to which the house
was formally searched.
Id. at 1036.
Faced with these facts, the court in Madrid opted not to
rest its decision on whether, after "excising illegally obtained
information from the warrant application, . . . the warrant was
supported by probable cause [and] the decision to grant the warrant
was unaffected by the illegally obtained information."
1040.
Id. at
Instead, the court expressed but did not resolve doubts
about those questions, and proceeded to hold that the results of
the
warranted
search
could
not
be
admitted
under
the
inevitable-discovery exception due to "the severity of the police
misconduct."
Id. at 1041.
Whether we would follow Madrid we need not decide today.
For one thing, the officers' effort to confirm what Banyan was
attempting to hide under the mattress falls short of the blatant
search through personal effects in Madrid.
Furthermore, the
established chronology of events in this case eliminates any
uncertainty about the provenance of the information that provided
probable cause to secure the warrant.
In short, neither of the
two factors present in Madrid that might justify a refusal to apply
the independent-source exception are present here.
Dent's second argument is that the warranted search was
not truly independent of the warrantless entry and sweep because,
had the officers not earlier entered and seized the premises,
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Case: 16-2005
Document: 00117186675
Page: 10
Date Filed: 08/08/2017
Entry ID: 6111370
Banyan (and the drugs that he had tried to hide under the air
mattress) would have been gone from the apartment by the time the
warrant was executed.3
recognized
that
consequences
destruction
contribute
if
of
to
As Dent points out, we have previously
"[t]he
the
the
the
Segura
seizure
property
discovery,
court
itself,
by
did
by
freezing
except
speculation that this was the fact."
to
not
consider
preventing
it
in
require
the
loss
situ,
more
or
might
than
United States v. Palumbo,
742 F.2d 656, 669 (1st Cir. 1984) (opinion for rehearing) (per
curiam).
Even assuming that we would entertain a suppression
argument based on our observation in Palumbo, Dent's argument would
fail because he has produced no evidence to show that Banyan and
the bag of drugs would have been absent from the apartment at the
time of the warranted search. Instead, he says only that we should
take at "face value both the exigency arguments made by the
government and the suppression testimony of [the] law enforcement
officers."
Yet the arguments and testimony to which Dent refers
are based on the "reasonable belief[s]" of police officers given
the information available to them at the time of the warrantless
entry.
See United States v. St. Pierre, 488 F.3d 76, 79 (1st Cir.
2007).
Thus, the government's claim of exigent circumstances
3
We note that Dent makes no argument in this regard about
the other evidence seized from the apartment, including the 80.3
grams of cocaine base discovered in the bathroom ceiling.
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Case: 16-2005
Document: 00117186675
Page: 11
Date Filed: 08/08/2017
Entry ID: 6111370
cannot, by itself, establish that Banyan and the bag of drugs would
have left the apartment were it not for the earlier entry and
seizure.
All
in
all,
we
do
not
agree
with
Dent
that
the
independent-source exception, as described in Segura and Murray,
is inapplicable to this case.
We therefore agree with the district court that the
evidence seized from the apartment had a sufficiently independent
source to deny Dent's motion to suppress.
Because we affirm the
district court's ruling on independent-source grounds, we decline
to
decide
whether
the
government
established
that
exigent
circumstances justified the initial warrantless entry.
III.
For
the
foregoing
reasons,
we
court's denial of Dent's motion to suppress.
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affirm
the
district

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